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The significance of a last will and testament cannot be denied. Unfortunately, a lot of people find it intimidating to prepare one.
While this process takes effort, resources, and time, it’s not as complicated to do once you know how it works.
Once you turn 18, making a last will and testament should rank high on your “adulting” to-do list, especially if you care about your family and loved ones.
We’ve compiled this thorough guide to help you understand what a last will and testament is, and how you can make one.
What is a Last Will and Testament?
Your last will and testament decides what will happen to all your properties when you pass away. It clearly lays out which person will receive your belongings, and how and who will make that happen.
When you make a last will and testament, one of your duties is to name an executor who will be responsible for distributing all your assets. You also need to name the legal guardian of your children.
Under Philippine law, any person over 18 years old with a sound mind can prepare a will with or without the help of a lawyer.
Types of Wills
There are two kinds of wills in the Philippines. Take note that although oral wills are accepted in other countries, only written wills can be accepted in the Philippines1.
To make a notarial will, the testator or person making the will does not need to write it by hand.
It must be subscribed at the end by the testator, and it must also be attested by three or more witnesses in the presence of one another and the testator.
As its name suggests, it must also be notarized. However, the notary public does not need to have a copy of the will or file it in court.
This type of will is handwritten, and it’s an alternative to wills that are produced by a lawyer.
According to the law, the only requirement to its validity is that the entire will must be handwritten, dated, and signed by the hand of the testator.
This will can be made inside or outside the country, and there doesn’t need to be a witness to it.
It also does not need to be signed on each page or notarized like a Notarial will.
Importance of Will
Here’s why you should make a will.
It saves your loved ones from stress
When you die, all your estates will go to the probate court, and this process can get very complicated if you don’t have a will.
The court needs to name a representative to administer your estate and assets and this process can be very time-consuming and expensive. When you have a will, your probate process can be streamlined.
It decides who will handle your assets
One of the most important reasons why you should have a will is so you can decide the person who will handle your assets.
When you make a will, you will be its “testator,” and you can nominate an “executor” who will be in charge of your assets and how to distribute it.
Be careful in choosing an executor because this is a very important job. Their responsibilities include liquidating your assets and closing your bank accounts, among others, so make sure you trust this person.
It decides who gets your properties
As a testator, you must name people who will become beneficiaries of your assets.
You can also name people who will receive properties that you have not included in the list, and the executor will be in charge of distributing all these assets.
It determines who will take care of your children
When you have minor children, you can write a will to nominate a guardian. Usually, the surviving parent will get legal custody, but if both parents die, a will is vital.
The guardian is responsible for taking care of the daily needs of your children. If you don’t have a will, the court will nominate a guardian, and this could be someone who you don’t want to be in charge of raising your kids.
If you don’t have children but have pets, you also need a will to ensure that someone will take care of your them after you pass away.
Pets are considered property by the law, so you can name a beneficiary for your pet such as a family member or a trusted friend.
It takes care of your digital assets
Wonder what will happen to your email, cryptocurrencies, Facebook, Instagram, domain names, and other digital assets when you die?
You can name a digital executor in your will to manage some of these accounts.
Make sure to list how you want them to handle these assets such as closing them. More of this will be discussed in the FAQs section.
It prevents family disputes
If you have a complicated dynamic with your family members, that’s another reason to take care of your will.
When you don’t have one, your loved ones will fight over your assets and this can cause a strain in their relationship.
Will and Compulsory Heirs
Compulsory heirs include the children, spouse, and parents of the testator.
When a person dies, the order of priority as to the people in charge to succeed the properties depends on the circumstances.
Without a will, the compulsory heirs will receive some or all assets, as well as transmissible rights and obligations.
Compulsory heirs cannot be robbed of their right to inherit the transmissible rights and obligations, as well as the properties of the testator2.
The testator also cannot exclude a compulsory heir in the disposition of their assets.
How to Write a Will in the Philippines
If you want to write a will, you need to follow certain formalities to ensure its validity.
Step 1: Decide whether you want to write your own will or hire a lawyer.
Step 2: Identify your beneficiaries or those who will inherit all your assets.
You also need to choose a legal guardian for your child if you have any.
Step 3: Identify all your assets which include properties and money.
Keep in mind that you can only include assets that you solely own during the time of your death.
For example, a joint bank account in the name of you and your business partner is not a part of your estate.
This also applies to cars, land, homes, art, and other assets. Before your assets can be distributed, debtors may collect what you owe them.
Step 5: Decide who will be the executor for your estate.
You can also name a backup executor in case the first executor cannot serve your wishes. The executor can be paid for their effort.
You should also consider writing particular instructions about your funeral, and other important matters like who should take care of your pets.
Step 6: Sign the document.
You also need to find witnesses to sign the will before you get it notarized.
Requirements for a Will
The requirements for your will depends on whether you want to go with a notarial will or holographic will.
For example, a notarial will must be signed and sworn to by you, your witnesses, and a notary. They must also sign all pages, except the last, and all the page numbers must be numbered in letters on the upper portion.
Meanwhile, a holographic will must be fully handwritten. It doesn’t have to be notarized or have a witness. As mentioned above, it needs to be dated by the testator. The testator must also sign the bottom of the will, and all provisions must be dated and signed for it to be valid.
All erasures and alterations must be authenticated with a full signature. Because this will does not need a witness, it can be private and the testator doesn’t need to disclose its contents.
Information you will need to write a Will
Here is the information you need to ensure your will execution is seamless.
Legal guardian of your children
If you have children under 18 years old, this person will be responsible for taking care of their welfare.
This person will carry out all your wishes and finances. Their duties can also include paying all bills you have left, and filing your final taxes, among many others.
This can either be a person or organization that will inherit your assets.
Your last will and testament must outline how you want to settle all your outstanding debts.
For example, if you took a loan for your home, will your beneficiary be in charge of keeping up with the payments?
This also includes your funeral expenses.
Last Will and Testament Sample Template
To make writing a will easier, you can follow a template online.
This sample by Project Noah3 is a great template to be used in the Philippines.
KNOW ALL MEN BY THESE PRESENTS:
I, [name of testator], Filipino citizen, of legal age, single/married to [name of spouse if any], born on the [date], a resident of [address], being of sound and disposing mind and memory, and not acting under undue influence or intimidation from anyone, do hereby declare and proclaim this instrument to be my Last Will and Testament, in English, the language which I am well conversant. And I hereby declare that:
I. I desire that should I die, it is my wish to be buried according to the rites of the [religion, ie: Roman Catholic Church] and interred at [burial site location, ie: family mausoleum in Manila];
II. To my wife, [name], I give the following property to wit: [asset];
III. To my children, [name] and [name], I give the following properties to wit: [asset] in equal shares;
IV. To my brother, [name], I give the following properties to wit: [asset].
V. To my loyal assistant, [name], I give the following properties to wit: [asset].
VI. I hereby designate [name] as the executor and administrator of this Last Will and Testament, and in his incapacity, I name and designate [name] as his substitute.
VII. I hereby direct that the executor and administrator of this Last Will and Testament or his substitute need not present any bond;
VIII. I hereby revoke, set aside, and annul any and all of my other will or testamentary dispositions that I have made, executed, signed, or published preceding this Last Will and Testament.
IN WITNESS WHEREOF, I have hereunto affixed my signature this [date] in [city], Philippines.
Signature of Testator over Printed Namevia Project Noah PH
How to Probate a Will in the Philippines
Without probate, the properties listed in the will cannot be transferred, and it will remain in the name of the deceased until the process is completed.
Even foreign wills must go through Philippine courts to prove that it is valid.
The last will and testament will be probated in the municipality or city of the testator’s permanent residence. The probate process can also go through while the testator is still alive.
This will enable the court to prove that the testator is of sound mind.
What is Probate?
All beneficiaries of your will need to go through to court, and the process that allows the properties to be distributed is called probate.
Avoiding probate is not possible whatever the type of will is.
Last Will and Testament FAQs
Still have some questions about writing your will? We’ve rounded up some FAQs below.
While all individuals need to have a will, here are the specific categories that must settle their will as soon as possible:
– Married individuals
– People with children, minor or not
– Those who have a positive net worth
– Those with a lot of assets
A will is a legal document that states how you want your assets to be distributed and how you want your affairs to be handled after your death.
Meanwhile, a trust holds properties and assets for beneficiaries for a certain or indefinite period.
On the other hand, the beneficiaries of inheritance can control and possess the assets or property when they inherit it.
The major difference between a trust and an inheritance is a trust can be used to transfer assets while a person is still alive. With inheritance, the owner of the assets must pass away before all assets can be inherited.
If you don’t have a will, the Philippine law states that your compulsory heirs will automatically inherit your assets and estate.
For a will to be valid, the testator must be at least 18 years old.
For notarized wills, it must be signed by the testator and three witnesses, and notarized.
For holographic wills, it must be handwritten. Both types of wills should be written while the testator is of sound mind.
That said, an oral or video recording where the testator narrates how he/she wants properties to be handled is not valid. A private letter addressed to the children or spouse of the deceased is also not valid.
It is possible to probate the will while the testator is still alive.
For notarized wills, how it was witnessed and signed will be examined, as well as the mental capacity of the testator while making the will.
On the other hand, holographic wills must be signed and dated.
Before a will can be enforced, it is important that the formalities required by the law must be followed. Then, it must be submitted to and allowed by a probate court.
There needs to be a judicial proceeding where the court is involved. This will give life to the will’s stipulations.
The person who is in charge of the will’s custody must deliver the will to the court 20 days after he is informed of the testator’s death.
In the Philippines, only people who are 18 years old and above and with a sound mind can make a will.
Sound of mind means a person must be in full possession of reasoning faculties, or that the mind of the testator is wholly unimpaired, unbroken, or affected by any disease or injury.
Generally, it is possible to name anyone as a beneficiary as long as they are alive. This includes your children, spouse, friends, and loved ones.
Your will can be left with your attorney and they can store it in a secure location in their office. It is not recommended to keep your will in a safe deposit unless someone has access to it.
Wherever you want to store your will, make sure you tell people you trust where it is located.
The executor is your legal personal representative. They are in charge of distributing and sorting out your assets and finances after your death.
When choosing a legal guardian for your children, make sure to think long-term. You can select more than one guardian if your first choice does not work out for some reason.
You can also specify the people who you don’t want to raise your children. As much as you can, be very specific in how you want your children to be raised and include information like the school you want them to attend and other wishes.
Other facts you should consider are:
– Parenting skills
– Living situation
– Stable job
– Financial security
– Moral beliefs
– Age and stage of life
It is recommended to review or amend your will when any of these instances happen:
– The status of your beneficiaries or executor has changed (if they become ill, die, move away)
– If you want to include new assets
– If you get married
– If you get annulled
– If you move houses or sell a property
– If your financial situation changes
– If you have another child or grandchild
Here are the assets that can be controlled by a will:
– Real estate such as your house
– Stocks, mutual funds, bonds
– Physical possessions
– Business ownership
– Digital assets that are worth money like Paypal funds, refunds from online stores, digital music and photos, frequent flyer miles, cryptocurrencies, domain names, and copyright
Meanwhile, here are the assets that cannot be controlled by a will:
– Properties in a living trust
– Life insurance
– Joint tenancy property
– Money in your retirement account or pension plan
– Digital assets that are not worth money like e-mail, social media accounts, and subscriptions to streaming services
Undue influence and fraud can leave your will invalid.
This includes when the family caregiver gets the testator to sign the will pretending it’s another legal document, or when a non-family caregiver forces the testator to leave an inheritance for them.
You can make a will with or without the help of a lawyer, but if you have expansive assets, it is recommended to consult a lawyer to make sure your will is ironclad.